G.R. No. 1929. May 01, 1905

The defendants are charged with the crime of murder, committed,
according to the complaint, as follows: “In the Province of Sorsogon,
in an uninhabited place near the municipality of Santa Magdalena, on
the morning of one of the days of the month of August, 1902, that is to
say, about the 18th of said month, the defendants formed and banded
together with others, armed with bolos and firearms did, in ambush and
with known premeditation, kill three soldiers of the Constabulary
called Santiago Dellosa, Ramon Gerona, and Juan Espinola, inflicting on
them wounds with a bolo from which they then and there died.” The court
found the defendants guilty of the crime of which they are charged and
sentenced them to death, for which reason this case has been brought to
this “court en consulta. The defendants Pedro Gaymo, Cayetano
Gaupo, and Vicente Julio having died during the pendency of this
review, we declare the case as to them dismissed, in accordance with
the law.

The killing of the three Constabulary soldiers as denounced in the
complaint has been sufficiently proven at the trial, but it was not
established that the act was committed with treachery (alevosia)
or with premeditation. The defendants belonged to a band of
insurrectionists commanded by one Esposias, and on the evening of the
day in question, they were returning from a visit in Talaongan, where
it seems they had their camp. After they left the town of Santa
Magdalena, at about midway, they met a division of ten Constabulary
men, of which the three formed part. The meeting was casual; it was not
intentionally sought, nor was it premeditated on the part of the
defendants. Two witnesses for the prosecution assert this, and they are
the only ones who testified on that point. To one of them the following
question was put, “Did you wait in that place for the Constabulary or
did you meet them casually?” To which he answered, “We did not wait for
them; we just met the Constabulary by accident in Matacla.”
When he was questioned again whether they knew the Constabulary had
gone to Talaongan and had to pass by the place where the engagement
took place he answered, “We did not know that the Constabulary would
pass that place, we only by chance met them as we came from Magdalena.”
Nor was there any treachery. Treachery was said to exist in the fact of
the ambush which it was supposed the defendants prepared together with
the other members of their band so as to fall on the Constabulary
unawares without risk. The supposition of ambush is incompatible with
the fact of the meeting having been casual. This meeting was followed
immediately by a fight in which the three deceased were killed. But,
disregarding this fact, the statement made by one of the soldiers of
the Constabulary who took part in the encounter shows conclusively that
such treachery never existed. According to this witness the
Constabulary opened fire on the band of the defendant five minutes
before any of the members of the said band succeeded in advancing and
wounding with their bolos any of the Constabulary soldiers. This proves
that the killing of the latter was not the result of a surprise, as
that would have rendered them unable to defend themselves, but, on the
contrary, it was the result of an open fight which was of sufficient
duration for each side to utilize, as they did, the means of attack and
defense with which each was respectively provided. And so it was that
three individuals belonging to the band of the defendants were also
wounded.

The act committed under such circumstances constitutes the crime of
homicide provided for and punished in article 404 of the Penal Code and
not that of murder, for the reason that in the execution thereof none
of the circumstances which qualify or characterize the latter crime
were present. The aggravating circumstances of nocturnity and
uninhabited place, taken into consideration in the judgment appealed
from, can not be considered for the reason that neither the time nor
the place of the occurrence was chosen by the defendants intentionally.
The aggravating circumstance of a “gang” (cuadrilla) should be
taken into consideration, because it is proven that the band which
caused the death of the three Constabulary soldiers was composed of
seventeen individuals armed with firearms and bolos.

The participation of the defendant Juan Fresnido in the acts
prosecuted has been sufficiently proven at the trial. He himself stated
to several persons that he delivered several blows with his bolo during
the fight upon one of the Constabulary soldiers. This statement has
been testified to by five witnesses. Furthermore, it was also stated by
said Juan Fresnido before the provincial fiscal and also before the
justice of the peace, as he admits in the declaration which he made as
a witness at the trial. The exculpation which he alleges, that he made
such statement before the justice of the peace and the fiscal on
account of maltreatment on the part of the Constabulary soldiers, does
not appear substantiated in any manner in the record of the case.
Furthermore, there would still remain the testimony of the five persons
who heard him relate that fact on several occasions, against which
testimony the defendant has established absolutely nothing.

As regards Severino Fresnido, an eyewitness for the prosecution
states clearly and unequivocally that said defendant fled from the
place of the occurrence at the instant of the beginning of the fight.
This being so, it is clear that he could not have had any participation
in the killing of the Constabulary soldiers which resulted from the
fight. The testimony of said witness has not been disproved by any
other data in the record, and for this reason we accept it as true, and
also for the reason that he is a witness for the prosecution.
Notwithstanding this circumstance, some liability might yet attach to
the defendant in question, if the encounter with the Constabulary
soldiers had been the result of a plan previously agreed upon between
him and his companions, but the engagement having been purely
accidental and he having taken no active part in the fight, we can not
find him responsible for the consequences of the same, and therefore
his acquittal must follow.

Reversing the judgment brought here en consulta, we find Juan Fresnido guilty of the crime of homicide executed with the aggravating circumstance of a “gang” (cuadrilla) and we impose on him the penalty of twenty years’ reclusion temporal
with one-fifth of the costs in this instance, and we acquit Severino
Fresnido, declaring the costs in both, instances corresponding to him de oficio. So ordered.

Arellano C.J., Torres, Johnson and Willard, JJ., concur.
Carson, J., disqualified.